Volume 83 — California Reports

<p>Appeal from a judgment of the Superior Court of Tulare County.</p> <p>The facts are stated in the opinion.</p>

<p>Landlord and Tenant—Lease — Fraudulent Representations of Lessor— Action for Rent — Pleading—Counterclaim—Damages.— In an action to recover rent due upon a written lease, alleged representations of the lessor as to the amount that certain crops would produce are matter of opinion, and cannot be regarded as fraudulent. A fraudulent representation as to the number of acres in the land is proper matter of counterclaim to reduce the stipulated rent by the amount of damage actually sustained; but if no such counterclaim is pleaded, and there is no averment of damage by reason of the representations, the alleged fraud is no defense.</p> <p>Fraud without Damage. — Fraud without damage furnishes no ground of action or defense.</p> <p>Accord and Satisfaction — Unexecuted Compromise — Discharge of' Obligation — Pleading. —An answer alleging that the plaintiff agreed to take a less sum than is sued for in full payment of the claim, and to extend the time of payment by taking a note payable in six months for the reduced sum, but showing that the agreement was not performed by payment of the money, or execution of the note, discloses no defense. Unless the agreement to accept the smaller sum in discharge of the large was carried out, the obligation to pay the larger sum was not extinguished or discharged, and there was no satisfaction, though there may have been a valid accord.</p> <p>Appeal — Dismissal — Order for Judgment on Pleadings — Review on Appeal. — An order of the superior court allowing judgment on the pleadings is not an appealable order, and an appeal therefrom will be dismissed, but such order may be reviewed on api>eal from the judgment.</p>

<p>Easement—Ditch — Prescription—Adverse User — Continuity. —The continuity of adverse user required to give a presumptive right to an easement depends upon the nature and character of the right claimed. An omission to use the easement when not needed does not disprove or break the continuity of user shown by using it when needed. The claimant of an irrigating ditch, constructed by him over the land of another, may prove a prescriptive right thereto by showing the use of water therein, for irrigation when needed during the cropping season for the period of five years.</p> <p>Id. — Taxes — Assessment oe Land—Evidence. — If it does not appear that an easement in the use of a ditch over the land of another, to which a prescriptive right is claimed by adverse user, has ever been assessed for taxes, the assessment-hook, showing an assessment of the land over which the ditch runs, is not admissible against the claimant of the easement.</p>

<p>Tenancy in Common — Sale by Co-tenant — Power oe Attorney. — A power of attorney from one co-tenant to another to convey and sell, or to agree to convey and sell, his interest in the premises held in common, does not authorize the other co-tenant to contract for the boring of a well on the premises, and to pay for it in land; and if such co-tenant so contracts in his own name, the contract and a conveyance in pursuance thereof will hind only his interest in the land.</p> <p>Id. — Ejectment — Estoppel of Donor of Power — Partition — Rights oe Grantee of Specific Tract. — In such case the co-tenant who gave the power of attorney is not estopped to claim his undivided interest in the land, in an action of ejectment against the grantee of a specific part of the land from the other tenant in common, by reason of his knowledge of the contract and conveyance, and of the improvements made by such grantee, and his failure to object thereto; nor by reason of an agreement of partition between the original tenants in common setting apart to the donor of the power .that part of the land which included the specific tract granted, the grantee being no party to such agreement; but such grantee has an equity which he may still enforce in an action of partition brought by himself as a tenant in common to have his interest set apart out of the share of his grantor.</p> <p>Religious Corporations — Filing of Copy of Articles.—Construction of Code. — Section 299 of the Civil Code, requiring a certified copy of the copy of the articles of incorporation filed with the secretary of state to be filed in the county where the corporation owns land, applies only to corporations a copy of whose articles were required by statute to be filed with the secretary of state, and does not apply to a religious corporation established before the code, under a statute requiring only the filing of its articles with the county clerk.</p>

<p>Appeal from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

The instructions referred to in the opinion related to the validity of the declaration of homestead, and the effect of the deed described in the opinion, and involved the same questions of law which are discussed in the opinion relative to those instruments. The further facts are stated in the opinion of the court.

<p>Mortgage — Purchase by Joint Mortgagee —• Foreclosure —• Parties. — When one of two joint mortgagees, who holds a several note secured by the mortgage, purchases the equity of redemption, he becomes the holder of the legal title, and is properly made a party defendant to an action of foreclosure by the other mortgagee or his assignee, as being a purchaser by title subsequent and subject to the lien of the mortgage. His rights as joint mortgagee may be protected by his taking the proper steps to bring them before the court, hut not otherwise.</p> <p>Id.—Pleading — Description of Premises — Exhibit of Mortgage.— The property may be sufficiently described in the complaint in an action to foreclose a mortgage by reference to the mortgage, which is appended to the complaint as an exhibit, and made part of it, if the mortgage sufficiently describes the mortgaged premises.</p> <p>Depositions — Presence of Witness — Reading Deposition of Party — Construction of Code. —The only case in which the presence of a witness whose deposition has been taken is required, if it can be procured at the trial, is where the deposition was taken under the sixth subdivision of section 2021 of the Code of Civil Procedure. The presence or absence of a party whose deposition has been taken under subdivision 1 of said section is immaterial, and such deposition may be read on the trial by either party, though the witness be in court when it is read, and though other witnesses are present by whom the same facts can be proved.</p>

<p>Public Lands — Entry under Desert-land Act — Cancellation of Entry— Preferred Right. —A person who has successfully contested and procured the cancellation of an entry made by another under the deserc-land law does not acquire a preferred right of entry on the land embraced-in the contest. Under the act of Congress for the relief of settlers on public lands (21 U. S. Stats, at Large, 140, 141), such a preference is only given to contestants who have procured the concellation of pre-emption, homestead, or timber-culture entries.</p>

<p>Quieting Title—Equitable Title—Trust.—An action to quiet title will not lie as such, where it appears that the legal title is in the defendant, though the complainant may he entitled to a conveyance from the defendant of the legal title upon a complaint seeking such conveyance from him as trustee.</p> <p>Enforcement of Trust—Bona Fide Purchaser — Notice of Resulting Trust — Unrecorded Decree of Distribution — Quitclaim Deed. — A bona fide purchaser from the holder of the legal title, without notice of a secret or resulting trust arising from the payment of the purchase-money by another person, when conveyance was originally made to his grantor, is protected against the enforcement of such trust, and is not affected with constructive notice of an unrecorded decree of distribution made while his grantor was administrator of the estate of the deceased owner of the equity, distributing such equity to the heirs of the decedent, under an inventory made by such administrator declaring that decedent was the owner of the equitable estate; nor is such purchaser put on inquiry by the fact that his conveyance from the holder of the legal title was in effect a quitclaim deed, granting only his right, title, and interest in the premises.</p>

Petition to the Supreme Court to settle exceptions disallowed in settling a statement on motion for new trial in an action appealed from the Superior Court of Sierra County. The facts are stated in the opinion of the court.

Application to the Supreme Court for a supersedeas pending an appeal from a judgment of the Superior Court of San Diego County. The facts are stated in the opinion of the court.

Application of respondent to dismiss an alternative writ of prohibition to the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Vendor and Purchaser—Possession of Purchaser—Suit for Purchase-money— Defense—Counterclaim—Waiver of Damages for Delay.—A purchaser cannot remain in possession of lands under a contract, and. at the same time refuse to pay the stipulated purchase price. He must surrender possession or show an eviction before he can defend a suit for the purchase-money, or show a failure of consideration, or counterclaim to the purchase-money, or damages for delay in performance of the contract by the vendor. So long as he retains possession he waives all objections, whether of defect of title or of delay in completing it, and is bound to accept title according to the terms of the contract, if offered while he still retains possession.</p> <p>Id. — Tender by Purchaser — Default of Vendor.—Atender of purchase-money made before the time provided for payment by the strict letter of the contract cannot put the vendor in default for non-delivery of the deed.</p> <p>Id.—Tender of Deed — Demand of Purchase-money—Lien of Mortgage. — The tender of a deed of the land purchased, and a demand of the purchase-money before a mortgage has been paid off, will not defeat a suit for the purchase-money, if the tender was not objected to on that ground, and the mortgage was in fact released before the trial, and a good and sufficient deed tendered at the trial. If the amount of the mortgage is less than the purchase price, the purchaser could have retained a sufficient sum to satisfy the mortgage debt.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Specific Performance — Contract for Land and Money — Entirety — Pleading — Misjoinder of Causes.—When the alleged contract of which the specific performance is sought provides for a conveyance of certain real estate, and the payment of a certain sum of.money in addition, in consideration of certain services of plaintiff, a complaint seeking specific performance of the agreement to convey, and also a judgment for the sum of money agreed to be paid, is not demurrable for misjoinder of causes of action. The contract is an entirety, and must be enforced as such.</p> <p>Id. — Contract for Services ■—Performance of Services — Pleading — Sufficiency of Cause of Action. — A complaint alleging as consideration of defendant’s agreement to convey certain described land to plaintiff, and a certain sum of money in addition, that it was agreed between them that plaintiff should use his knowledge and influence in behalf of and render certain services to defendant, to enable defendant to take the preliminary steps to acquire title to certain lands from the United States, and that he did use such knowledge and render such services, whereby defendant was enabled to, and did, take such steps as would enable him to acquire such lands, sufficiently states a cause of action.</p> <p>Id.—Statute of Frauds — Sufficiency of Memoranda — Parol Evidence to Explain Figures. — A written memorandum describing the land sold, and stating that it was all sold to a purchaser named for value received, and signed by the vendor, with two sets of figures prefixed, without a dollar-mark, the first of which is shown by parol evidence to denote a total sum of money due from the vendor to the purchaser, of which the land was part payment, and the second a certain other sum which still remained due after the price of the land was deducted, and another memorandum, made at the same time, showing the same balance due to the purchaser, in figures, with the dollar-mark prefixed, and appending after the signature of the vendor a reference to each tract of land sold, with figures annexed, which were shown to denote the agreed price of each tract, and the sum of which corresponds to the difference between the sets of figures prefixed to the first memorandum, constitute, when taken together, sufficient memoranda to satisfy the statute of frauds; and parol evidence is admissible to explain the figures in such written memoranda.</p> <p>Instruction — Preponderance of Evidence — Misuse of Terms. — The misuse of the word “testimony,” instead of the word “evidence,” in an instruction upon the subject of the preponderance of evidence, is not such an error as would probably mislead the jury.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County.</p> <p>The facts are stated in the opinion of the court.</p>

Petition to the Supreme Court to settle exceptions in an action appealed from the Superior Court of the city and county of San Francisco. The facts are stated in the opinion,

<p>Riparian Rights — Change oe Watercoup.se — Acquiescence — Arti.jhciaIí Use of Channel. — When a stream is diverted into a new channel, either by natural or artificial causes, so as to affect other riparian owners favorably, and the owner of the land over which it formerly flowed acquiesces in such change until new rights have accrued, or may be presumed to have accrued, such acquiescence is binding, like a public dedication, and the water cannot be lawfully returned to its former channel. But this rule does not apply to a case where the right of way through the natural channel of a creek is purchased as a means of conveying water to be turned' in and taken out of such channel by artificial means, or confer the right in such case to divert the natural flow of the stream, on account of acquiescence in such artificial use of the channel. The parties turning such water into the stream cannot divert more than they turn in, and the right of the riparian owner to the natural flow remains the same as before.</p> <p>Id. —Artificial Increase of Flow. —Water brought into a stream from another source, by artificial means, so as to increase the flow of the stream for the uses of a riparian owner upon his land, is held by an entirely different claim from that which entitles such owner to the natural flow; but this would not effect the character of the stream, or the right to the water naturally flowing therein.</p> <p>Id. — Removal of Obstruction to Natural Flow. — The removal of débris from the channel of a natural watercourse, by a party whose object is, not to use the natural flow of the water, but to use the channel of the stream for the conduct of waters to be turned in and taken out by artificial means, will inure to the benefit of a riparian owner of the steam, though by the deposit of such débris the natural flow had been so interfered with that no water reached the lands of such owner except in time of high water.</p> <p>Id. — Prescriptive Right to Divert Water — Adverse Claim ■—Findings — Review on Appeal. —Though findings upon the subject of a prescriptive right to divert water may not be carefully and clearly expressed, yet if, reading and construing them all together, their evident meaning is that appellant maintained a dam and ditch upon the stream in controversy for more than five years continuously prior to the commencement of the action, but did not maintain the same under any claim of right adverse to the respondent’s right, it follows that such continuous maintenance of the dam and ditch is no bar to an action to enjoin the diversion of the watercourse, and a judgment enjoining such diversion will not be reversed for inconsistency of findings.</p>

<p>Appeal from a judgment of the Superior Court of Tulare County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Indemnity School-lands —Booth Act — Void United States Patent — Collateral Attack — Ejectment. — The listment of land to the state of California in lieu of a sixteenth section, on the first day of July, 1S70, which listment was confirmed by the act of Congress of March 1, 1877, known as the Booth act, cannot, after the passage of such act, he canceled by the Secretary of the Interior, and a patent of the United States issued subsequent to an attempted cancellation is without authority of law, and void, and may be collaterally attacked in an action of ejectment based thereon by a defendant having a mere naked possession, though he fails to show priority with the title of the state. (McFarland, J., and Paterson, J., dissenting.)</p> <p>ID. — Application to Purchase Lieu Land — Void Certificate —• Collateral Attack —■ Curative Acts. — An application to purchase lieu lands of the state under the act of March 28, 1868, containing no description of the land by legal subdivisions, in an affidavit, as required by that act, is void, though such description be contained in an unverified statement accompanying the affidavit; and a certificate of purchase issued thereunder is void, if the application has never been cured, and may be attacked by a mere possessor of the laud. The curative acts of 1870 and 1872 cannot apply to such an application, if the land did not then belong to the state, though afterwards confirmed to the state by the Booth act. (Per Thornton, J., Works, J., and Sharpstein, J.; Paterson, J., and McFarland, J., dissenting.)</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Default — Excusable Neglect. —Instance of relief against a judgment by default on the ground of excusable neglect.</p> <p>Id. — Affidavit of Merits—Answer. — A sworn answer positively denying the material allegations of the complaint is a sufficient affidavit of merits.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco granting a new trial.</p> <p>The facts are stated in the opinion.</p>

Motion to dismiss an appeal from an order of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial. The facts are stated in the opinion.

<p>Criminal Law — Homicide —Evidence — Cross-examination of Defendant. — When a defendant accused of murder becomes a witness in his own behalf, and denies the fact that he killed the deceased, a wide latitude of cross-examination is permissible, owing to the general nature of the defendant’s statement.</p> <p>Id. •— Husband and Wife —■ Privileged Communications. — The defendant upon a trial of a homicide who, as a witness in his own behalf, denies the killing, cannot be cross-examined as to conversations occurring between him and one who was his wife at the time of the conversations, though she was afterward divorced from him. The code sweeps away all distinction between confidential and other communications between husband and wife, and extends the privilege to any communication made by one to the other during marriage; and no disclosure can be forced from either spouse without the consent of the one against whom the disclosure is sought to be used. The privilege applies to the communication, however its disclosure may be sought.</p> <p>Id. — Objections to Evidence — Repetition of Objection—■ Privileged Communications — Incompetence. — When an attorney has clearly and pointedly objected several times to a certain line or class of testimony, and the objection is overruled, he is not required to repeat the objection to every question of the kind objected to. When objections have been specifically made that certain questions asked called for privileged coinmuuications, the objection to similar questions that they are incompetent is, under the circumstances, sufficiently broad to raise the objection that the communications were jirohihited by law as being privileged.</p> <p>Id. —Prejudicial Error—Incompetent Questions as to Privileged Communications — Harmless Answers. — The fact that persistent questions asked of a defendant accused of homicide as to privileged communications between defendant and his wife were answered by the defendant mostly in the negative does not show that defendant was not injured by the error. If it appears that the questions, and not the answers, were what the prosecution thought important, as persistently assuming before the jury the existence of damaging facts, the fact that such questions are erroneous and incompetent is ground for reversal of a judgment of conviction.</p>

<p>Appeal from a judgment of the Superior Court of San Joaquin County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Countv Government Act — Bonded Indebtedness — Order oe Super-' visors — Specification of Purpose — Invalid Election — Mandamus. ■— Under section 37 of the county government act, a bonded indebtedness of the county cannot be created unless the order of supervisors submitting the question to the vote of the people specifies the amount of bonds required for each particular purpose. An order submitting the question of the issue of a total amount of bonds, “for the purpose of constructing, grading, repairing, and maintaining bridges and public highways within the county, and for the purpose of erecting and maintaining a county jail and poor-house and hospital within the county, ” without further specification of the amount required for each purpose, is invalid, and mandamus will not lie to compel the county treasurer to issue bonds voted by the people under such order.</p>

<p>Appeal from a judgment of the Superior Court of Nevada County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Colusa County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Nevada County, and from an order refusing to settle a statement on motion for new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mining Claims — Annual Expenditure — Claims Held in Common — Question of Fact. —The owner of two mining claims held in common has the right to do the annual work necessary for the protection of both claims on one of them; and the question whether the work was intended for the benefit of both claims, and tended to develop both of them, is one of fact, upon which the decision of the jury will not be disturbed, if there is any evidence tending to support the verdict.</p> <p>Id. —■ Evidence of Holding in Common — Possession of Mining Claim — Presumption of Title. — The party making annual expenditure upon one of two claims held in common is not required to prove the location and record title of the claim upon which the work was done, if the title to such claim is not in dispute. It is sufficient to prove actual possession and improvement of such claim, from which the law presumes ownership.</p> <p>Instructions Alp.eady Given in Substance. —It is not error to refuse an instruction when the court has already given instructions upon the same subject which are less confusing and more favorable to the party asking it than the one refused.</p>

<p>Quieting Title — Possession of Public Lands — United States Homestead Claim — Effect of Inclosure. — A plaintiff who only relies upon the naked possession of public lands, without connecting himself with the title of the government, must he regarded as a mere trespasser, as against persons claiming under the government; and cannot maintain an action to quiet title against a defendant who has filed a valid homestead claim upon the premises. Such homestead claimant has title to and right of possession of all the land described in the certificate of entry, and could not be prevented by an unauthorized inclosure of plaintiff from making a homestead entry of the tract including such inclosure, if he entered peaceably upon another portion of the tract, and has in other respects complied with the law.</p> <p>Id. — Rights of Third Party — Rebuttal. — The plaintiff in such action to quiet title cannot show, in rebuttal of the defendant’s title under his homestead entry, that a third person, not a party to the suit, and with whom he shows no privity, resides on the land as a qualified pre-emptor, and has a certificate of pre-emption which antedates the homestead entry of the defendant.</p> <p>Id. — Awarding Possession to Defendant. — When the answer of a defendant out of possession in an action to quiet title sets up an adverse claim of title which is found to be superior to the claim of the plaintiff, the court may in its decree award possession of the premises to the defendant.</p>

<p>Promissory Note — Illegality of Consideration — Want of Notice — Findings — Assumption of Sufficiency. — In an action upon a promissory note which defendant alleged was signed on a void, illegal, and invalid consideration, the consideration being the payee’s pi-omise not to prosecute her brother for a crime, and to keep the crime secret, a failure to find specifically upon the illegality of the consideration is not material, if counsel on both sides assume or concede that findings to the effect that neither plaintiff nor his indorser had notice of the want of consideration or invalidity of the note, are equivalent to a finding that the consideration was illegal. Such assumption or concession of the sufficiency of the findings as to illegality of the consideration must have effect for all purposes of the appeal.</p> <p>Id. — Bona Fide Purchase of Note —Notice of Illegality — Presumption.— When the defendant has proved or the plaintiff has conceded that the consideration for a promissory note upon which the former is sued by an indorsee thereof is illegal, a prima facie case of notice to the indorsee of the illegality of tiie consideration is thereby made.</p> <p>Id.—Purging Note of Illegality—Rights of Second Indorsee with Notice — Finding not Excepted to—Immaterial Finding.—The assignee of a bona fide indorsee of a note for value without notice of its illegality may recover upon the note, even though the assignee had such notice; and where it • is found that the first indorsee of a note had no notice of the illegality, and such finding is not excepted to, a finding that the plaintiff, who purchased the note from the first indorsee, had no notice becomes immaterial.</p> <p>Id. — Evidence — Cross-examination of Prior Indorsee. — Where a first indorsee, who was the assignor of plaintiff, has testified that he purchased the note in question for a valuable consideration, it is proper cross-examination to question him as to whether he knew it was executed for an illegal consideration at the time he bought the note, and that all persons had been warned by the maker of the note by a newspaper notice not to purchase it, on the ground of illegal consideration; and the fact that the testimony in chief of such witness was intended to meet and avoid the anticipated defense, and was therefore out of its proper order, makes no difference as to such right of cross-examination.</p>

<p>Appeal from an order of the Superor Court of Stanislaus County refusing to change the place of trial.</p> <p>The facts are stated in the opinion.</p>

<p>Meaning of Word “Sold.” — The word “sold” dpes not necessarily mean that a conveyance must be made or that the title must pass.</p> <p>Id. —Instance. —Where labor in a mine was to be paid for when the mine was sold, or a sufficient sum was realized from it to pay the plaintiff, the sum became due when an agreement to sell was made, and more than sufficient to pay plaintiff was paid on account.</p> <p>Id.—Maturity of Obligation — Event.—The maturity of an obligation may be fixed by an event, as by the sale of a mine, whether the defendant was the owner of the mine or not.</p> <p>Id. — Estoppel. — If the contract means that the defendant was the owner of the mine, he will not be allowed to deny the fact in an action for the services.</p>

<p>Appeal from a judgment of the Superior Court of Tuolumne County, and from an order refusing a new trial.</p> <p>tThe facts are stated in the opinion.</p>

The instructions asked by defendant numbered 5, 6, 8, and 12, referred to in the opinion of the court, were as follows: “ 5.

<p>Appeal — Review of Conflicting Evidence__When the evidence is conflicting, an order denying a motion for a new trial, made on the ground of insufficiency of the evidence to justify the verdict, will not he disturbed.</p> <p>Negligence — Breaking of Wooden Dam and Reservoir.—When the evidence of plaintiff tends to show that the damages alleged to have been occasioned to plaintiff’s mining claim by the breaking of defendant’s wooden dam and reservoir were caused by its poor construction and its rotten and decayed condition, and were owing to defendant’s want of care in attending to the reservoir, such evidence will support a verdict for damages in favor of plaintiff, though the evidence of defendant may tend to show that the breaking of the reservoir was not through fault in the dam or reservoir, or owing to negligence of the defendant in its construction or maintenance, but that the break was in the native earth at one end of the dam.</p> <p>Id.—Evidence—Irrelevant Question as to Barth Dams — Qualification of Expert. —In an action for the negligent construction and maintenance of a wooden dam and reservoir of defendant, by the breaking of which plaintiff’s land was flooded, a question as to the experience and observation of a witness as to the breaking of earth dams is irrelevant; nor would proof of any amount of familiarity with earth dams qualify a witness to testify as an expert in regard to wooden dams.</p> <p>New Trial — Irregularity in Proceedings — Illness of Counsel — Evening Session —■ Discretion. — It is in the discretion of the court to grant or refuse an application of counsel not to proceed with the trial at an evening session, upon his statement that he is too ill to proceed further; and if it does not appear that the party represented by such counsel was thereby prevented from having a fair trial, a new trial will not be granted on account of the refusal of such application. 1</p>

Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial. The facts are stated in the opinion of the court.

<p>Mining Claim — Lode Location — Parallelism of End Lines.—A substantial compliance with section 2320 of the Revised Statutes of the United States, requiring the end lines of each claim located upon a vein or lode to be parallel, is all that is required. A location may be made in such an irregular and many-sided shape as to destroy the right to work the vein beyond the surface lines; but the object of the statute is sufficiently met to sustain that right if the location is made lengthwise of the vein in a quadrangular shape, though the end lines are not exactly parallel; and the locator has a right, and perhaps it is his duty, within any reasonable time, to make the end lines parallel, if such change does not interfere with the substantial property rights of any other person. The purpose of the statute is to prevent a party from claiming more width of vein outside his surface lines than within them.</p>

<p>Vendor’s Lien — Conveyance to Third Party with Notice at Request of Purchaser. •—■ A complaint which avers that the plaiutiff sold land to oue of the defendants for a certain sum, of which sum said defendant paid part, leaving a balance due and unpaid, and that at the time of sale, for reasons known to such defendant, and at his request, a conveyance of the land was made by plaintiff with the name of another defendant inserted therein, who knew all the facts of the transaction, is sufficient to warrant the euforeement of a vendor’s lien against such other defendant for the balance of the unpaid purchase-money.</p> <p>Id. — Enforcement of Lien for Purchase-money — Exhausting Remedy AT Law. — A bill in equity to enforce a vendor’s lien for a balance of unpaid purchase-money will lie, though plaintiff’s remedies at law have not been exhausted.</p> <p>Id.—Waiver of Lien—Non-negotiable Due-bill — Agency — Parol Evidence — Finding—Presumption. — The vendor does not waive his lien by taking as security a non-negotiable due-bill for the amount of the unpaid purchase-money from a third person, who appends to his signature the designation of himself as agent of the purchaser. Parol evidence is competent to show how such due-bill was received, and who was intended to he bound by it; and a finding that it was made by the purchaser will he presumed go have been supported by the evidence.</p> <p>Negotiable Paper — Due-bill Payable upon Contingency. — A written instrument acknowledging a certain sum of money to he due and payable when a suit in court is settled is not a promissory note.</p>

<p>Landlord and Tenant—Nuisance — Landlord’s Liability to Stranger. ■— A landlord is not liable to a stranger for consequences resulting from a nuisance upon the leased premises unless the nuisance existed at the time the premises were demised, or the structure was in such a condition that it would be likely to become a nuisance in the ordinary and reasonable use of the same for the purpose for which it was constructed and let, and the landlord failed to repair it, or the landlord authorized or permitted the act which caused it to become a nuisance occasioning the injury.</p> <p>Id. — Authorizing and Contributing to Nuisance — Liability of Landlord for Fall of Awning. — Where the landlord not only authorized or permitted the act of the tenant which caused the nuisance occasioning the injury, but contributed to it by furnishing material to be used in creating it, he is liable for the consequences of such act. The owners and lessors of a building, who knew of and consented to the erection of an awning by the tenants, and contributed lumber to its construction, are liable for damages occasioned to third parties by the falling of the awning and a portion of the brick wall to which it was attached, by reason of the insufficiency of the wall to support the burden.</p>

<p>Nonsuit-—Waiver.—Where the testimony of the plaintiff tends to prove his case, a motion for a nonsuit is properly denied; and if the testimony is deficient, but after motion for a nonsuit for such deficiency is denied, „ the deficiency is supplied by the defendant’s evidence, the ground of nonsuit is removed or waived.</p>

<p>Appeal from an order of the Superior Court of Plumas County distributing the proceeds of the sale of attached property.</p> <p>The facts are stated in the opinion.</p>

<p>Vacation of Judgment—New Trial — Excusable Neglect — Omission to Appear at Trial — Absence from Choice. —Excusable neglect is not one of the grounds of motion for new trial under section 657 of the Code of Civil Procedure; but by section 473 of the same code it is one of the grounds, in addition to the ground of surprise, upon which a judgment may be vacated. Where negligence appears in the omission to appear or secure representation at the trial, it must be shown to be excusable, to justify relief on that ground. If the absence was not of necessity, but from choice of the party to consider his interest in the canvass of election returns of more concern than his interest in the trial of the action, his neglect of the trial is not excusable.</p> <p>Id, — Accident and, Surprise — Definition.—The terms “ accident ” and "surprise, "thoughnotstrictiysynonymous, have, asused in legal parlance, substantially the same meaning, as each is used to denote some condition or situation in which a party to a cause is unexpectedly pilaced, to his injury, without any default or negligence of his own, which ordinary prudence could not have- guarded against.</p> <p>Id. —Notice qf Trial — Failure to Attend. — Where a party toan action has actual notice before the day of trial that the case was set for that date, and that na further postponement would be agreed to by the opposing party, and the case, is tried in his absence, he is not entitled to have the judgment vacated and a new trial granted on the ground of accident and surprise.</p> <p>Id. —Showing of Injury. —To,entitle-one who has failed to appear at trial to relief upon the ground of surprise, he must show that he has been injured by the trial in his absence, and that a different result would be reached if tile judgment were vacated and a new trial had.</p> <p>Jury Trial— Waiver by Failure, to. Appear. —Though a jury trial may have been demanded by the defendant before the trial, it is waived by his failure to appear at the trial,, and the court may dispense with a jury in such case.</p> <p>Trial of Separate Causes Together.— Discretion — Failure to Demand Jury Trial and Continuance.—When two separate causes involving the same questions and set for the same day are tried simultaneously, the witnesses being separately sworn, in, each cause, but not separately examined, the cases are in effect tried separately; and such course is within the. discretion of the court,, though one of the parties fails to appear, if no injury results to such party. The attendance of counsel for the at .-.it defendant during the progress of such trial, who failed to demand a jury trial in the second cause, and. to obtain a continuance for that purpose, owing to the trial, having been commenced, shows no injury to the absent defendant, in the absence of a showing that a proper application for a jury trial and continuance of that cause would not have been granted.</p> <p>Order—Definition. — An order is a direction of a court or judge made or entered in writing, and not included in a judgment, settling some point of practice or some question collateral to. the main issue presented by the pleadings, and necessary to be-disposed of before such issue can be passed upon by the court, or necessary to. be determined in carrying into execution the final judgment.</p> <p>Id. — Order in Absence of Party Deemed Excepted to.— Ruling upon Evidence—Failure to, Except—Duty of Court—Secondary Evidence.— A ruling upon the admission of evidence' in, the absence of a party who has failed to, appear at the trial is not an order made in the absence of a party deemed excepted to, within the meaning of section 647 of the Code of Civil Procedure. The failure of the party to be present and to, except to, the admission, of secondary evidence, upon the ground that it is not the best evidence, will preclude the urging of error in that respect upon appeal, though it is the duty of the trial court, when only one side is represented at the trial, to. insist upon the best evidence attainable.</p> <p>Waiter of Findings — Failure to Appear.—Findings of fact are not necessary when the defendant fails to ajipear at the trial, but are waived by such failure.</p>

<p>Appeal from a judgment of the Superior Court of Placer County.</p> <p>The facts are stated in the opinion.</p>

This was a proceeding by writ of review in the superior court to set aside and annul an ordinance of the supervisors of San Joaquin County declaring the Stockton and French Camp toll-road to be a free public highway, and to be opened to the public. The superior court rendered a decree annulling the ordinance as being in excess of the jurisdiction of the board of supervisors, and the supervisors appealed therefrom.

<p>Fibb Insurance—Waiver of Condition as to Prepayment of Premium —. Extension op Credit upon Delivered Policy. — An express provision in a' policy of insurance that the company shall not be liable on the policy until the premium is actually paid is waived by the unconditional delivery of the policy to the assured as a completed and executed contract under an express or implied agreement that a credit shall he given for the premium, and the company is liable for a loss which may occur during the period of credit.</p> <p>Id.—Estoppel of Insurance Company — Acxnowi edgment of Receipt of Premium — Implied Acknowledgment — Executory Contract for Premium.—If an insurance policy contains a formal receipt of premium, its unconditional delivery is conclusive evidence of payment, so far as to estop the company issuing it from denying the validity of the policy, notwithstanding a declaration in the policy that it shall not be binding until the premium is actually paid; and the same result follows where the policy is delivered as a binding and completed contract upon a consideration expressed therein, the receipt of which is impliedly acknowledged, an authorized credit having been agreed upon as a substitute for cash payment, and there being a promise to pay the premium at a future time in consideration of the contract to insure.</p> <p>Id. — Authority of Local Agent — Power to Countersign and Deliver Policy — Contract for Unauthorized Credit. — A local agent of an insurance company who has authority to make a consummated and binding contract of insurance by countersigning and deliver-, ing its policy, and to extend a limited credit for the premium, has the power of the company to waive a condition in the policy that it shall not he binding until the premium is actually paid, and does waive such condition by delivering the policy unconditionally under an agreement for credit, though the term of credit given be in excess of his actual authority.</p> <p>Id. — Remedy for Unauthorized Term of Credit — Cancellation of Policy for Non-payment—Notice to Assured — Non-receipt of Notice by Mail. — The giving of any credit hy authority of the insurance company being a waiver of actual payment as a condition precedent to liability, the only remedy for an unauthorized term of credit is for the company personally to notify the assured, who is obligated to pay the premium, that lie must pay at the end of the authorized term of credit, or that the policy will be canceled for non-payment of premium. If the notice is sent by mail, and is not received, the cancellation for non-payment of premium is ineffective.</p> <p>Id. — Credit for Term Apparently Authorized — Rights of Assured — Tender of Premium after Loss — Nonsuit. —An assured person is entitled to the whole term of credit for which he contracts with a local agent of an insurance company who has apparent authority to give credit for the premium, though the term of credit be in excess of the agent’s real authority, if the assured had no knowledge of the limitation upon his power when the agreement for credit was made, and cannot thereafter be put in default for a failure to pay or tender the premium before the expiration of the credit actually given. A tender of the premium within such term of credit is a sufficient compliance with the condition of payment to sustain an action on the policy, though it be made after the loss has occurred, and be refused by the company. The company cannot refuse such tender, and then successfully insist upon a non-suit because the premium was not actually paid.</p> <p>Id. — Ostensible General Power of Local Agent — Waiver of Conditions Precedent — Undisclosed Limitations of Power — Excess of Authority. — A local agent of an insurance company who is clothed with ostensible general authority to solicit applications, receive proposals, make contracts for insurance, receive first premiums, and to countersign and deliver policies within certain limits, is presumed- to have the general power of the company within those limits to waive conditions precedent to the liability of the company upon policies which lie is authorized to countersign and deliver. Such local agent is presumed to have power co-extensive with the business intrusted to his care, and his powers will not be narrowed by limitations not communicated to the person with whom he deals; and he may bind his principal hy any acts or contracts within the general scope of his apparent authority, notwithstanding an actual excess of authority.</p> <p>Id. ■—Condition for Written Indorsement of Waiver—Oral Waiver of Conditions Precedent. — A condition in a policy that the use of general terms, or anything less than a distinct specific agreement, clearly expressed in writing, and indorsed on the policy, shall not he construed as a waiver of any printed or written condition or restriction therein, though it constitutes a limitation upon the power of special agents after the policy has been delivered, does not preclude the oral waiver of a condition for prepayment of premium or of any conditions precedent to liability, where the power of the company is represented by the agent who delivers the policy unconditionally under a previous oral agreement to waive such conditions.</p> <p>Id.—Breach ot Conditions Precedent — Knowledge of Authorized Agent — Waiver of Condition as to Indorsement. — The knowledge of the breach of any condition precedent to liability upon a policy which is fully known to an agent of an insurance company, local or general, who is authorized to consummate the contract of insurance, is the knowledge of the company, and his act in executing and delivering the policy as a valid and completed contract is the exercise of the power of the company, and constitutes a waiver by the company of such condition precedent, and also a waiver of the general requirement that waivers of conditions expressed in the policy shall be in writing indorsed on the policy.</p> <p>Id. — Limitation upon Capacity of Company to Contract—Authority of Agent to Waive Conditions Orally — Question of Fact. •— An insurance company cannot so limit its capacity to contract by general stipulations against waiver of conditions, or that its contracts or waivers must he in writing, that it cannot by its agents make an oral contract or oral waiver not forbidden by the statute of frauds. Whether or not any particular agent has the general power of the company to make an oral contract or oral waiver of a condition notwithstanding the provision in the policy requiring a writing, is a question of fact.</p> <p>Id. — Oral Waiver of Indorsement by Local Agent — Estoppel of Company as to Original Liability. —■ A local agent who is clothed with general power to consummate contracts of insurance within a certain territory stands in the stead of the insurance company, and represents its whole power to give validity to the contracts which he is authorized to execute and deliver, and to waive conditions precedent to its liability by oral agreement, including the condition as to the mode of waiver of such conditions precedent by indorsement in writing on the policy, so far as to estop the company from questioning its original liability by reason of non-indorsement of the waiver upon the policy when delivered.</p> <p>Id. — Condition as to Arbitration of Loss — Acquiescence in Proofs of Loss — Denial of Liability — Waiver.—■ When the policy provides for an arbitration of the amount of loss in ease of a failure of the parties to agree, no arbitration is contemplated or required, except in that event; and if upon presentation of the proofs of loss by the assured the insurance company did not object to the amount or to the proofs, but denied its liability on other grounds, claiming that the policy did not exist, and that it had been canceled before the loss for non-payment of premium, this is sufficient evidence that the company acquiesced in the amount of loss claimed, and thereby waived its right to have it determined by arbitration.</p>

<p>Application for a writ of mandate. The facts are stated in the opinion.</p>

<p>Abatement—Another Action Pending —Dismissal of Former Action.— A judgment of dismissal of a former action between the same parties, and for the same cause, entered after the trial of the second action has commenced, but before its conclusion, is a good answer to a plea in abatement of the former action.</p> <p>Breach of Promise of Marriage—Release of Liability — Certificate of Acknowledgment — Recitals not Conclusive — Instruction.— The facts recited in a notary’s certificate of acknowledgment attached to a receipt and release from liability for a breach of promise of marriage, pursuant to section 1948 of the Code of Civil Procedure, are only prima facie evidence of the execution of the instrument, and are not conclusively presumed to be true. The rule applicable to acknowledgments of conveyances by married women does not apply; and the facts recited in such certificate may be contradicted by any evidence, direct or indirect. An instruction that the evidence of the party named in the certificate, denying the genuineness and due execution of the instrument, is not sufficient to overcome the certificate, should be refused.</p> <p>Id. — Improper Motives of Defendant — Exemplary Damages for Breach of Promise — Inapplicable Instruction — Assuming Facts not Proved. — In an action for breach of promise of marriage, where the record discloses no evidence tending to show any improper motive on the part of the defendant in entering into the alleged contract of marriage with the plaintiff, it is prejudicial error for the court to instruct the jury that “ a man who enters into a contract of marriage with improper motives, and then ruthlessly and unjustifiably breaks it off, does a wrong to the woman, for which she is entitled to exemplary damages, ” as such instruction assumes and intimates to the jury that there was evidence tending to show improper motives.</p>

Appeal- from a judgment of the Superior Court of Tuolumne County, and from an order denying a new-trial. The facts are stated in the opinion.

<p>Swamp an® Overflowed Lands —Title of State — Jurisdiction of Federal Land Department. — Under the swamp-land act of Congress of September 28, 1850, and the act of July 23, 1S66, to quiet land titles in California, the plat of the survey of the township approved by the United States surveyor-general of California showing any subdivision of land in said township to be swamp and overflowed is conclusive between 'the state and the United States, and vested the title thereto in the state as of the twenty-eighth day of September, 1850, and the federal land department had no jurisdiction thereafter to order a hearing as to the character of said land, or to determine that the same was not swamp and overflowed, or to make alterations in the approved plat of survey, or to issue a patent for any portion of the land shown by the original approved plat to be swamp and overflowed.</p> <p>Id. — Prescriptive Title to Patented Lands — Statute of Limitations. — Neither section 315 nor section 316 of the Code of Civil Procedure, limiting the right of the state and its grantees to the period of ten years’ limitation against the state, has any application to a case where a state patent is issued, when not more than five years of the ten-year limit against the state has run. In such ease the five-year limit prescribed by the various sections of the code respecting the adverse occupancy of lands between private individuals applies, and begins to run from the date of the patent in favor of an adverse occupant then in possession of the lands.</p>

<p>Estates of Decedents — Rents and Profits of Lands Devised—Devastavit— Liability oe Executrix — Settlement of Final Account — Jurisdiction of Probate Court. — An executrix is entitled to receive the rents and profits of lands devised as a part of the assets of the estate of the deceased testator until such lands are distributed, and is not liable to a personal action for the same at the suit of the devisee after the settlement of her final account, though such rents and profits were not included therein, nor at any time administered, sold, or paid out by' the executrix, or distributed to any person, and though the executrix was guilty of a devastavit in respect to such assets by neglect to account therefor. The matter of the settlement of the estate and the distribution of such assets to the person entitled thereto is under the sole jurisdiction of the probate court, and the personal obligation for the devastavit is only enforceable by resort to the court which settled the account.</p> <p>Id.—Conclusiveness of Final Account.—The decree of the probate court settling the accounts of an administrator or executor, and fixing the amount of his liability, is conclusive upon all persons interested in the estate who are not under disability.</p> <p>Id. — Presumption as to Receipt of Assets by Executrix — Finding of Probative Facts. — An executrix having lawful authority to receive the rents and profits of lands devised in her official capacity, and no authority appearing to receive them in any other capacity, must be presumed to have received the same as assets of the estate, though it is not found that she received them as executrix. Findings of probative facts showing that she did not treat them as assets of the estate in the course of administration do not show that they were not received by her as executrix.</p>

<p>Appeal from a judgment of the Superior Court of Calaveras County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion.</p>

Application of August Heilbronner for disbarment of M. A. Luce, J. W. McDonald, and E. S. Torrance, as attorneys at law, for alleged unprofessional conduct. The facts are stated in the opinion of the court.

<p>New-trial Statement — Extension of Time.—When the judge has granted one extension of time for thirty days in which to prepare and serve a statement on motion for new trial, his power is exhausted, and the fact that the time is further extended by consent of the adverse party does not confer upon the judge any power to grant a second extension thereafter without such consent. If the statement is not prepared and served within the time allowed by law, it cannot be considered at the hearing of the motion or upon appeal, and the motion for a new trial is properly denied upon that ground.</p> <p>Estates of Decedents — Foreclosure of Mortgage — Plea of Homestead — Findings. — When the answer in an action to foreclose a mortgage against the heirs of a decedent pleads that deceased in his lifetime declared a homestead upon the property, and that the same had never been abandoned, findings that one of the appellants, who was the divorced wife of decedent, had no interest or title in the premises by homestead declaration or othervrise, and that the other defendants, who were minor heirs, had an interest in the property as devisees, which was subject and subsequent to the mortgage, and that no probate homestead had been designated out of the mortgaged property, are sufficient to sustain the judgment in favor of the plaintiff.</p>

<p>Gift — Intent of Donor — Maxim. — The intent of the donor of a gift is most to be regarded, within the rule, Cujue est dare, ejns eat dieponere. The giver of a gift has the right to regulate its disposal and to designate the donee.</p> <p>Estates of Decedents—Account of Executrix—Gift to Widow of Decedent__A gift made to the widow of a decedent personally, by his former employers, of an amount which would equal his salary for two months if he had continued to live, is not chargeable to her as executrix in her account of the estate, regardless of whether she knew it was a personal gift to her or not, if it appears to be the clear intent of the donor to make it such.</p> <p>Id.—Allowance to AVidow—Profits not Chargeable to Her as Executrix. — The widow of a decedent is entitled to a reasonable provision for her support, and the court is not restricted to a bare support, but in making the allowance should take all the circumstances into consideration, and have regard to the mode in which she lived during the lifetime of the decedent, and the sufficiency of the estate to pay the amount allowed. She is not chargeable as executrix for profits received from the subletting of rooms in a house hired by her, the rental of which is paid out of her monthly allowance.</p> <p>Id.—Finality of Allowance—Appeal — Power of Probate Court — Fraud. — The allowance to the widow is not reviewable after the time has elapsed for appeal from the order, as it then becomes final, and the power of the court over it is at an end. The court below cannot sit as an appellate court to review its own orders, though it may be that if the court has been imposed upon it can change the order to make it conform to a fair determination, on facts studiously withheld being made to appear. But if it has only the same facts before it on which it first acted, it cannot change or modify the order in settling the final account of the executrix.</p> <p>AVill — Intentional Omission of Child—• Evidence.—Evidence of the declarations of the testator as to his intention to omit any of his children from his will is not admissible. In order to disinherit a child whose name is omitted from the will, it is not sufficient merely to state that the whole of his property is devised to his wife, but the words of the will must show that the testator had the child in mind, and must indicate directly, or by implication equally as strong, that he intended to omit such child from the will.</p> <p>Adoption of Children — Power of Legislature—Judicial Power — Constitutional Law. —The legislature has full power to regulate the adoption of children, and may invest any person, or officer, or court with the power of receiving, witnessing, and declaring the adoption, and prescribe the form of adoption. The matter of adoption belongs to the legislative, and not to the judicial, department of the government; and though the act of passing upon the adoption may he judicial in the sense of being an act of judgment, that does not make it any part of the judicial power spoken of in the constitution, and by it vested in courts. The Civil Code conferring the power of adoption upon the judge as distinguished from the court is constitutional.</p>

The action was brought by John Fox and J. C. Tilton, who alleged that they were jointly interested as farmers in the cultivation of large tracts of land in the county of Stanislaus for the raising of grain, to recover damages for the alleged breach of a contract made by them in June, 1884, with the corporation defendant, acting through L. U. Shippee as its duly authorized agent, to manufacture and sell to them two twelve-foot Shippee combined harvesters, with Shippee and…

The facts are stated in the opinion of the court, and more particularly in the opinion rendered upon the first hearing of the cause.

<p>t Short-hand Reporter — Compensation — Judicial Action of Committing Magistrate — Power of Supervisors — Duty of Auditor—Mandamus. — The compensation of a short-hand reporter, who acts under appointment of a justice of the peace in taking down testimony given before him as a committing magistrate, may be fixed by the magistrate after the services are rendered, under the terms of subdivision 6 of section 869 of the Penal Code, not exceeding the compensation allowed such reporters in the superior courts under section 274 of the Code of Civil Procedure, as it stood before the unconstitutional amendment thereof of March 21, 1885. The action of such magistrate is judicial, and not legislative, and the board of supervisors is not required to allow or settle the claim, or supervise the action of the magistrate. It is the duty of the county auditor to draw his warrant on the treasurer for the amount properly allowed by the magistrate on his certificate and order, and he may be compelled by mandamus to perform such duty.</p> <p>Constitutional Law — Statutes — Repeal by Implication. — No repeal by implication can result from a provision in a subsequent statute, when that provision is itself devoid of constitutional force.</p>

<p>Summons — Statement of Nature of Action. — A summons is sufficient if it states the nature of the action in general terms. It is unnecessary to state whether the right to the money sought to be recovered accrued from work and labor, or from goods sold and delivered, or to state the kind of lien sought to he foreclosed, or on what property such lien attaches. The object of the requirements of the statute as to what tha summons shall contain are carried out by a general statement of what is specialized in the complaint, to which the summons points expressly or by implication of law, and it is immaterial whether a copy of the complaint is served with the summons or not on the party objecting to its sufficiency.</p> <p>Foreclosure of Mechanics’ Liens—Promise to Pay — Non-payment — Findings. —In an action to foreclose liens for labor performed upon a mine, etc., where the complaint alleges the performance of labor for which the defendant promised to pay at a fixed rate, and that the amount due therefor is unpaid, and the answer denies each of these allegations, findings that the labor was performed, and that on a certain day specified before the commencement of the action there was due therefor an unpaid balance specified, fail to pass upon material issues, and are insufficient to support a judgment for plaintiff. The precise question in issue should he found as to the promise, and also that a sum of money was due and unpaid the day the action was brought.</p> <p>Id. — Mortgage Lien — Priority — Fraud — Want of Consideration — Findings. — When the complaint in an action to foreclose certain mechanics’ liens alleges that a mortgage claimed by one of the defendants, which was prior in date to most of the liens, was without consideration, and was executed to defraud the plaintiffs, a finding that the mortgage was without consideration, without a finding upon the question of fraud, will not support a decree ordering the proceeds of the property to be applied first to the payment of the plaintiffs’ claims. Those of the plaintiffs whose liens were subsequent in date to the mortgage could attack it onl)7 upon the ground that it was made to hinder, delay, or defraud creditors. The mere fact that it was without consideration is not equivalent to this.</p> <p>Id.—Lien upon Mining Claim — Mining Ground — Patented Land. — A lien for work and labor may be taken upon mining ground owned by a patentee of the United States. The words “mining claim,” in the statute, include “mining ground” and all “mines,” whether the title thereto is inchoate or perfect. But the lien will not extend to adjacent land which is not mineral in its character, though the inclusion of non-mineral land in the notice of lien will not vitiate it if any part of the land is a mine, the court having power to adjust the rights of the parties by its decree. The phrase “mining ground,” used in the findings, ds sufficient to denote the property upon which the lien is claimed.</p> <p>Id. — Use or Materials Furnished — Finding.—■ There should be a finding that materials furnished for the working of a mining claim had been used in the work done on the mine. If not used, there can be no lien therefor.</p>

<p>Appeal from a judgment of the Superior Court of Placer Comity.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Fresno County, and from orders overruling a motion in arrest of judgment, and refusing a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of San Luis Obispo County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

Application to the Supreme Court for writ of mandate to the sheriff of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Application to the Supreme Court for writ of habeas corpus. The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of the city and comity of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a decree of distribution of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Fresno County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of San Luis Obispo County fixing the compensation of a guardian ad litem.</p> <p>The facts are stated in the opinion ,of the court.</p>

<p>Appeal from an order of the Superior Court of Amador County settling and allowing the final account of executors.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Foreclosure of Mortgage — Adverse Title — Practice — Dismissal — Reservation in Degree. — An adverse title to the mortgaged premises held by parties claiming by conveyance prior to the mortgage, or by title paramount to the title of the mortgagor, is not the proper subject for determination in a suit for foreclosure. The court may refuse to pass upon such title, and the proper course would be to dismiss the action as to the adverse claimant, or to specify in the decree that it is made without prejudice to his adverse rights.</p> <p>Id.—Appeal—Error without Prejudice—Modification of Judgment. ■— It is not prejudicial error requiring the reversal of the judgment to sustain a demurrer to an answer in an action of foreclosure setting up an adverse title, by conveyance from the mortgagor, and alleging that it is superior to the lien of the mortgage, although the claimants were made parties defendant, and the complaint alleged that their interests were subject and subsequent to the lien of the mortgage; but if the decree failed to dismiss the action as to such claimants, or expressly to reserve their rights, it will be modified upon appeal so as to make such reservation.</p> <p>Id. — Payment of Mortgage — Pleading of Adverse Claimant — Evidence. — It is a matter of no concern to one who claims under an adverse title paramount to the mortgage whether the mortgage note has been paid or not, and he cannot, upon appeal, assign error in the admission of evidence relating to an issue tendered by his answer as to payment of the mortgage.</p>

Proceedings for contempt in disobeying an order of the Supreme Court staying execution upon a judgment of the Superior Court of the county of Sonoma, appealed to this court. The facts are stated in the opinion of the court.

<p>Broker — Authority of — Contract by — “ Net Price.” — A broker who is authorized to contract for the sale of land at a “net” price per acre must obtain the required price per acre and sufficient to cover whatever expenses are included by the word “net.”</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County.</p> <p>The facts are stated in the opinion.</p>

Application to the Supreme Court for a writ of mandate to. a judge of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco granting a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Vacation of Judgment — Failure to Appear at Trial — Insufficiency of Showing — Discretion.—When a case was regularly set on the trial calendar of the superior court, and after being regularly reached, was continued once to a day certain, owing to the failure of plaintiff or her attorney to appear, and was then tried in the absence of plaintiff and her attoi'ney, whereupon judgment was rendered for defendant, an affidavit of plaintiff’s attorney showing that he did not think the case would he reached so soon, and that he was deceived by mistaking the date of the law journal in which the calendar was published daily, and did not think the case would be heard on the day on which judgment was rendered, does not make a sufficient showing of mistake, inadvertence, surprise, or excusable neglect, to enable the appellate court to say that the court below abused its discretion in denying a motion to vacate the judgment.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco,</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco vacating a judgment of divorce.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorce — Offense of Husband — Allowance from Future Earnings — Jurisdiction.—The court granting a divorce for the offense of the husband has jurisdiction to compel him to pay a certain sum monthly after divorce, out of his future earnings, independently of any common or Separate property then In esse, for the support of the divorced wife, and by way of compensation for the deprivation growing out of his own wrong, which allowance it may subsequently increase or diminish as the changed circumstances of the parties shall warrant. (Paterson, J., dissenting.)</p> <p>Id. — Definitions — Alimony — Permanent Allowance — Compensation to Wife. —Alimony in its strict technical sense proceeds only from husband to wife; and is applied by the legislature only to an allowance for the support of the wife pendente lite. The permanent allowance provided for by section 139 of the Civil Code is not, properly speaking, permanent alimony, nor is it merely a substitute for the wife’s interest in the common or separate property of the husband, but is allowed by way of compensation for a wrong done to the wife.</p> <p>Id. — Contempt — Inability to Comply with Order — Conclusiveness oe Finding—Habeas Corpus.—The court may enforce compliance with its order for the payment of a monthly allowance by the divorced husband for the support of his divorced wife, by imprisoning him for contempt for its violation, his only remedy being to purge himself of contempt by showing to the satisfaction of the court his inability to obey the order, and that such inability has not been caused by his own act for the purpose of avoiding payment. The finding of the court as to his ability is conclusive upon habeas corpus, and the prisoner cannot be discharged from imprisonment, if the facts showing jurisdiction appear upon the record.</p>

<p>Venue —Railroad Corporation — Breach of Obligation — Refusal to Carry Lumber—Showing Requisite for Change of Venue—Presumption.—A corporation may be sued in the county where its breach of obligation occurred, as well as in the county where it has its principal place of business; and where a railroad company is sued for damages resulting from its wrongful refusal to carry the plaintiff’s lumber to market, and there is nothing in the body of the complaint to show where the breach of the obligation occurred, the action is presumptively brought in the proper county, and it devolves upon the railroad company to show that the breach did not occur in that county, to entitle it to a change of venue to the county where it has its principal place of business.</p>

<p>Fire Insurance •— Construction of Policy — Special Limitation of Action — Maturity of Cause of Action. — A special limitation in a policy of fire insurance, providing that there shall be no recovery on the policy unless suit or action shall be commenced within twelve months next after the fire, is controlled and modified by a clause in the policy making the adjusted claim due and payable sixty days after the full completion by the assured of all the requirements contained in the policy; and the twelve months’ limitation does not begin to run until the loss is payable and the right of action accrues. If the assured complies with all the requirements of the policy as rapidly as he is able, and is unable to complete the requirements exacted by the insurance company until more than twelve months have elapsed after the fire, his cause of action is not barred by the provisions of the policy, on the ground that the suit is brought fourteen months after the fire.</p>

<p>Appeal from an order of the Superior Court of San Mateo County changing the place of trial.</p> <p>The facts are stated in the opinion.</p>

<p>Venue of Action against Corporation — Building Contract—Jurisdiction of Superior Court — Prohibition — Remedy by Motion.—A writ of prohibition will not lie to prevent the superior court of one county from proceeding in an action against a corporation whose principal place of business is in another county, in which it was served with summons, though the action is founded upon a contract for a building erected for the corporation in the latter county, and no obligation on the contract arose or breach thereof occurred in the county where the suit was brought; the superior court of any county having jurisdiction of the subject-matter, with power to send its process into all parts of the state, and the petitioner having a plain, speedy, and adequate remedy at law by motion for a change of venue of the action.</p> <p>Id. — Constitutional Law—■ Construction—Mandatory and Permissive Provisions. — Although the provisions of the constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise, yet the express words of section 16 of article 12 providing where a corporation “ may be sued” make that section merely permissive, and not mandatory. The constitution must be construed in harmony with itself; and it is only by construing that section as permissive, and not mandatory or exclusive, that it can be held not to conflict with section 5 of article 6, regulating the venue of real actions and the juris- . diction of the superior courts.</p> <p>Id. — Jurisdiction of State Court over Federal Corporation — National Banking Association. — The national banking law confers upon national banks the power to sue and be sued in any court of law and equity as fully as natural persons; and a state court may acquire jurisdiction of such incorporation outside of the county or city in which it is located, regardless of whether the action is transitory or local in its character.</p> <p>Id. — Transitory and Looai, Actions. — In the United States generally, and particularly in this state, the distinction between transitory and local actions, so far as any consequence attends it, depends entirely upon statutory law, and does not coincide with or depend upon the distinction between actions in rem and actions in personam.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying 'a new trial.</p> <p>The facts are stated in the opinion.</p>

Motion to recall a remittitur issued upon appeal from a judgment of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of Monterey County, granting a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Easements — Construction of Code. — Section 801 of the Civil Code merely enumerates and defines the different kinds of easements which may be appurtenant to land; and does not prescribe or regulate the manner of acquiring them.</p> <p>Id. —. Creation of Easements — Contract — Common Law. — Ordinarily an easement is created by contract or grant, express or implied; but with respect to the flow of surface water, the question of easement or no easement depends upon the law defining the mutual rights and obligations of the owners of adjoining lands, which are regulated in this state by the common law.</p> <p>Id.—Water Rights — Flow of Surface Water — Stare Decisis — Flood Water Distinguished from Surface Water.—The case of O'jburn v. Connor, 46 Cal. 346, is affirmed on the principle of stare decisis, to the effect that the owner of an upper tract has an easement to have the surface water which has been accustomed by a natural flow to pass off from his land, over the land below, flow over such land, without obstruction; but the rule thus aflirmed is confined to surface water having its sources in springs or descent from the clouds in the form of rain or snow, which the owner of the higher land cannot keep out by any practicable means, and does not apply to flood waters, which the owner of the higher land may restrain by the same means employed by his neighbor.</p> <p>Id. — Injunction against Levee — Overflow of Sacramento River.— A proprietor of higher land bordering on the Sacramento River cannot enjoin the erection of a levee or embankment by the proprietor of lower land adjoining his in the rear, the design of which is to prevent the overflow of the river from flooding the lower land, though such embankment may increase the accumulation of flood water on the higher land; the owner of the higher land having like means of protecting his own laud.</p>

Cross-appeals from a judgment of the Superior Court of Yolo County, and appeal of M. H. Torrence from an order denying a new trial. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Principal and Surety — Reimbursement op Surety. — The general rule is, that a surety can recover of the principal only the amount or value which the surety has actually paid.</p> <p>Id. — Extinguishment op Debt by Note op Surety.—A surety cannot claim reimbursement from the principal on account merely of a note given by the surety, unless such note has operated to extinguish the debt of the principal to the original creditor.</p> <p>Id. —Note to Co-surety por Contribution-—Out-lawed Debt. —A note given by one surety, by way of contribution to a co-surety who has satisfied the principal debt, even if accepted as payment by the co-surety, cannot confer a right of action against the principal, if the liability of the principal to reimburse the co-surety for his advances is barred by the statute of limitations.</p> <p>Id. — Statute op Limitations — Absence op Surety prom State — Payment to Co-surety — Liability op Principal. —The liability of the principal to reimburse a surety for payment of the original debt, not being founded upon an instrument in writing, is barred in two years from the date of such payment; and although the liability of another surety, for contribution to his co-surety who has paid the debt, may be kept alive by the absence of such other surety from the state, such absence does not extend the time within which an action may be brought by him against the principal upon payment to his co-surety of his eontributive share of the principal debt.</p>

<p>Foreclosure ot Mortgage — Writ oe Assistance—Res Adjudic-ata — Ejectment. — A writ of ass’stanee is a summary proceeding which a party who purchases under the foreclosure of a mortgage in his favor may sometimes advantageously avail himself of; but such proceedings are not res adjudicata as to many questions that may arise, and a right to the writ does not deprive the party of the fuller remedy afforded by the ordinary action of ejectment.</p> <p>Id. — Reformation of Foreclosure Decree in Ejectment — Settlement of Suit — Change of Stipulation of Parties by Attorneys. — When the parties to a foreclosure suit have signed a stipulation providing for a judgment and decree for the sale of the land described in the complaint, the attorney for the plaintiff cannot thereafter, without the consent or knowledge of his client, agree to a change of the stipulation so as to exclude a portion of the premises described in the complaint from the decree; and if by inadvertence of the attorneys the decree is made to conform to the stipulation of the parties, and not to the change so agreed upon by the attorneys, the defendant cannot have the decree reformed in a subsequent action of ejectment so as to conform to the stipulation of the attorneys.</p> <p>Attorney and Client .— Authority of Attorney to Compromise Action •— Want of Consent of Client—-Knowledge of Adverse Party. — Though it may be presumed that an attorney acted with the consent of his client in compromising an action, if nothing appears to the contrary, yet his general retainer as attorney does not give him the power to compromise the rights of his client; and he has no power to make a compromise against or without the consent of his client, if that want of consent is known to the opposite party.</p> <p>Mortgage in Fee — Estoppel of Mortgagor—After-acquired Title — Prior Conditional Grant. — The mortgage of a whole lot in fee estops the mortgagor from denying that any part of the estate mortgaged is less than an estate in fee-simple; and. the sale under the decree will carry any subsequently acquired title of the mortgagor, and will bind a portion of the lot conveyed to a third party by a conditional grant made prior to the mortgage, if the title reverts to the mortgagor upon breach of the condition at any time, subsequent to the date of the mortgage.</p>

<p>Criminal Law—Conviction without Preliminary Examination — Habeas Corpus.—A prisoner, convicted upon an information of a felony, cannot raise the objection in a proceeding upon habeas corpus that he was not examined or held to answer by a magistrate prior to the filing of the information. Such objection should have been taken before trial, by motion to set aside the information,</p>

The findings of the superior court show that the defendant entered into possession of the premises in controversy as tenant of plaintiffs under a written lease for the period of one year from June 21, 1886, at a rental of forty dollars per month, and that contemporaneously with the written lease a contract of sale was executed and delivered, binding the plaintiffs to convey the premises to the defendant in one year from that date, upon payment of a specified sum, the latter…

<p>Pleading — Verification by Attorney—Statement of Reasons.— When a verification of a pleading by an attorney states that the parties for whom he is attorney are absent from the county, it states a sufficient statutory reason for the verification by their attorney; and no additional force would be given to the verification by adding that it is for that reason that the verification is made by the attorney.</p>

Motion to dismiss an appeal from an order of the Superior Court of Los Angeles County vacating a decree of foreclosure. The facts are stated in the opinion of the court.

<p>Appeal — Dismissal — Service of Notice on Co-defendant — Decree Quieting Title.—Where in a suit to quiet title it is adjudged that plaintiff and one of the defendants own separate interests in the property in controversy, and the decree quiets title to their respective interests as against another defendant, it cannot be determined, in advance of an inquiry into the merits of the case, on motion to dismiss an appeal by the latter from the judgment for want of service of notice of appeal on the co-defendant, whether a decision of the appeal would necessarily affect the interests of such co-defendant as an adverse party.</p>

<p>Appeal from an order of the Superior Court of Santa Clara County denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Sureties — Appeal Bond — Construction. — Where a party appeals from ■ the judgment, and from an order denying a new trial, and the stay undertaking recites both appeals, and contains a promise to pay within thirty days after the filing of the remittitur, “if the said judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed,” this promise relates to the appeal from the judgment; and in a proceeding against the sureties, it must be shown that the appeal from the judgment has been disposed of in one of the specified ways, and that thirty days have elapsed since the filing of the remittitur thereon. It is not sufficient to show a remittitur affirming the order on motion for new trial.</p>

Motion to dismiss an appeal from a judgment of the Superior Court of Alameda County. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the city and. county of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

order of the Superior Court of Santa Cruz County revoking letters of administration. The facts are stated in the opinion of the court.

Motion by appellants to dismiss their appeal from a judgment of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Quieting Title — Mineral Lands—Quartz Veins—Pleading—Answer —Admissions—Immaterial Issues.—In an action to quiet title to a mining claim containing veins and lodes of rock in place, an answer which expressly admits that plaintiff is the owner and entitled to the possession of the land described in the complaint, and of all veins, lodes, and ledges, throughout their entire depth, the tops or apexes of which lie inside of plaintiff’s surface lines extended downward vertically, and expressly disclaims any estate therein adverse to plaintiff, and denies that defendant ever made such adverse claim, and sets up as new matter that defendant owns a certain wholly distinct quartz claim adjoining plaintiff’s claim, and owns a particular vein which has its apex therein, which it claims the right to follow downward into the claim of plaintiff, —presents no defense to the complaint, and tenders no material issue. And the same is true of an answer of the plaintiff to a cross-complaint of the defendant containing similar allegations and denials.</p> <p>Id. — Effect of Disclaimer — Judgment Quieting Title without Costs. — The only effect of a disclaimer by the defendant of an adverse claim or interest in the lands described in the complaint, in an action to quiet title, is to entitle the plaintiff to judgment quieting his title to such land, without costs.</p> <p>Id. — New Matter — Counterclaim — Cross-complaint — Distinct Land and Vein. — When the new matter alleged in an answer or cross-complaint of defendant relates to a distinct piece of land from that described in the complaint, and to a quartz vein which is no part of and does not belong to the land and veins described in the complaint, although it may extend downward into plaintiff’s land, it does not conflict with any alleged right of plaintiff to the quartz-mining claim and veins described by him, or constitute any defense or counterclaim to the complaint, and may be stricken from the answer as irrelevant; nor is it proper subject-matter of cross-complaint, because not affecting the property to which the action relates. Even if the defendant had claimed ownership of, or any less estate or interest in, the lands described in the complaint, there would be no proper occasion for a cross-complaint.</p> <p>Id. —Adverse Claim to Same Quartz Vein — Pleading — Findings.— In order to try title to a particular quartz vein, the location of the apex of which is disputed between adjoining claimants of quartz-mining ground, it is necessary that the pleadings should show that the vein claimed by defendant as having its apex in his mining ground is the same vein oiaimed by plaintiff to have its apex in the mining ground of plaintiff. If the vein is called by different names by each party, and alleged to be in the distinct ground of each, without any allegation or intimation in the pleadings of either party that these different names and descriptions are intended to designate the same vein, there is no issue presented to try as to the location of the vein, and findings thereupon are outside of the issues.</p> <p>Id.—Immaterial Issue as to Time of Adverse Claim—Findings. — If the answer claims an adverse interest in the land described in the complaint in a suit to quiet title, a denial that the defendant made such adverse claim before the commencement of the action is immaterial, and no finding need be made thereon. Nor need such finding be made upon an answer which denies ever having made any adverse claim, if the judgment merely quiets title without costs.</p> <p>Id. — Object of Action — Pleading — Averment of Adverse Claim. — The object of sections 738 and 739 of the Code of Civil Procedure is to enable the plaintiff, in an action to determine an adverse claim, to dispel it as a cloud on his title; and the only purpose of an averment of adverse claim is to notify the defendant of the nature of the action, and that he is required to set forth and litigate any adverse title he may have, or to disclaim it either expressly or by default. But such averment does not tender a material issue to be tried, and only affects the question of costs. The only material issues tendered by a complaint in such action relate to the title to the real property described in the complaint.</p> <p>Id.—Inconsistent Findings outside oe Issues — Immaterial Issues — Collateral Issues — Oral Pleadings. ■—The fact that findings made upon issues not tendered by the pleadings are inconsistent with each other is not ground for reversing the judgment, if no material issues are tendered by the pleadings. Findings upon collateral issues as to probative facts may be material, as having an evidentiary bearing upon material issues tendered by the pleadings, but cannot be material if no such material issues are tendered. There can be no substitution of oral pleadings, of which there is no record, for the written allegations of the parties.</p> <p>Findings — Admitted Facts.—There is no necessity of a finding upon agreed facts admitted by the pleadings.</p>

<p>Appeal from a judgment of the Superior Court of Mono County, and from an order refusing to change the place of trial.</p> <p>The facts are stated in the opinion.</p>

Motion to dismiss an appeal from an order of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

Motion to dismiss an appeal from a decree of the Superior Court of Alameda County. The facts are stated in the opinion of the court.

<p>Habeas Corpus — Criminal Law — Commitment upon Conviction — Recitals— Review of Errors.—A commitment upon a judgment of conviction of a misdemeanor need not recite that the defendant was informed of all his rights, or that six hours elapsed after conviction and before sentence, or that time was waived; and if he was not duly informed of his rights, or was sentenced too soon after conviction, these are mere errors which are reviewable only upon appeal, and cannot be inquired into on habeas corpus.</p>

Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Humboldt County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion of Commissioner Hayne in Department Two.</p>

<p>Broker to Sell Land—Contract of — Performance.—The contract of a broker who undertakes to sell a tract of land is that he will find a purchaser who is ready to buy on the specified terms; and when he produces such a purchaser he performs his contract.</p> <p>Id.—Failure of Title—Commission.—The commission of the broker does not depend upon the validity of the title to the land. It is not his fault if the sale falls through for want of a valid title, and his commission is not lost thereby.</p> <p>Id. —Prevention of Sale by Owner. —If the owner takes steps to make the intended purchaser believe that the title is bad, and the latter refuses to proceed with the transaction in consequence, the broker is entitled to his commission.</p> <p>Id. —Deposit — Return of—Notice to Owner. —The commission of the' broker has no relation to the question as to the return of the deposit. If the deposit is in the hands of the broker, to be returned if the title does not prove good, he may return it in the eases above mentioned, without notice to the owner, without affecting his right to a commission.</p>

The instructions excepted to by defendant, and referred to in the opinion of the court, were as follows: “As to third parties, written agreements of copartnership are not conclusive evidence as to the question who were members of the copartnership.

<p>Divorce — Supplemental Cross-complaint — Adultery after Commencement of Action — Trial —Failure to Object — Appeal.— In ail action for divorce, upon the ground of extreme cruelty, where, by consent of plaintiff, a supplemental cross-complaint is tiled by defendant, charging plaintiff with adultery committed after the commencement of the action, and issue is taken upon such cross-complaint by answer thereto, and a trial is had thereon without objection, and a divorce is granted thereupon to defendant, it is too late to object for the first time, upon appeal, that the supplemental cross-compliant sets up a new cause of action, accruing after the commencement of the action, or that it contained no prayer for relief, and must be regarded only as a defense, etc. Where a case is tried upon the theory that the issues are properly joined in the trial court, and no objection or exception is taken there, it is too late to raise such objection upon appeal.</p>

<p>Appeal from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

Application to the Supreme Court for a writ of review to annul certain orders of the Superior Court of the city and county of San Francisco. The facts are stated, in the opinion of the court.

<p>Continuance—Discretion of Trial Court. —Applications for continuance are addressed to the sound discretion of the trial court, and its action will not be disturbed on appeal, unless the record affirmatively shows that it abused its discretion.</p> <p>Replevin — Dismissal — Judgment for Return of Property — Alternative Judgment for Value—Untenable Objection of Plaintiff. — In an action to recover the possession or value of certain personal property, where the property has been delivered to the plaintiff, and the action is dismissed without trial, a judgment requiring merely that plaintiff return the property described in plaintiff’s complaint to defendant without an alternative judgment for its value, is not erroneous. A judgment in the alternative form prescribed by section 667 of the Code of Civil Procedure is required only in cases where judgment is entered after trial. And if an alternative judgment were proper, the plaintiff could not complain of the failure to give to tjie defendant an alternative judgment for the value of the property.</p>

Motion .to dismiss an appeal from a judgment of the Superior Court of Trinity County, and from an order denying a new trial. The following are the rules of the supreme court referred to in the opinion: — “Rule 3. Dismissal of appeal.—If the transcript of the record be not filed within the time prescribed, the appeal may be dismissed, on motion, upon notice given.